B-142517, JUN. 27, 1960

B-142517, JUN. 27, 1960

TO ATLANTA-NEW ORLEANS MOTOR FREIGHT CO.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 4, 1960, O/C--- G 158- 59, IN WHICH YOU, IN EFFECT, REQUEST REVIEW OF OUR DISALLOWANCE OF YOUR CLAIM, PER BILL NO. 16773, FOR ADDITIONAL FREIGHT CHARGES OF $40.54. THE CHARGES ARE ALLEGED TO BE DUE ON A 2,855 POUND SHIPMENT CONSISTING OF ONE DRUM OF "ENGINES, INTERNAL COMBUSTION, RADIAL CYLINDER TYPE, NOI. RELEASED TO A VALUATION NOT EXCEEDING $2.50 PER POUND" WEIGHING 2,600 POUNDS, ONE BOX OF "SEALING TAPE, CLOTH GUMMED," WEIGHING 103 POUNDS, TWO FIBRE BOXES OF "GASKETS," WEIGHING 36 POUNDS, AND ONE BOX "LAMPS, ELECTRIC," WEIGHING 116 POUNDS, TRANSPORTED FROM NORTH IRELAND, CALIFORNIA, TO WARRINGTON, FLORIDA, UNDER GOVERNMENT BILL OF LADING N- 34170595, DATED JULY 11, 1958.

FOR THIS SERVICE YOU ORIGINALLY CLAIMED AND WERE PAID $286.36 BASED ON A RATE OF $10.08 PER 100 POUNDS ($9.74 PLUS $0.34 ARBITRARY) FOR ALL OF THE COMMODITIES EXCEPT GASKETS, FOR WHICH A RATE OF $6.14 PER 100 POUNDS ($5.85 PLUS $0.29 ARBITRARY) WAS BILLED. ON AUDIT OF THE PAYMENT VOUCHER IN OUR OFFICE CHARGES WERE ALLOWED AS BILLED ON THE GASKETS AND LAMPS, BUT LOWER CHARGES WERE DETERMINED TO BE APPLICABLE FOR THE INTERNAL COMBUSTION ENGINES AND SEALING TAPE, COMPUTED ON THE BASIS OF CLASS-85 RATINGS NAMED IN ITEMS 61244 AND 84610, RESPECTIVELY, OF NATIONAL MOTOR FREIGHT CLASSIFICATION NO. A-4, MF I.C.C. NO. 1. BY STATEMENT OF OVERPAYMENT, GAO FORM 1003 DATED JUNE 23, 1959, AN OVERPAYMENT OF $40.54 WAS STATED AGAINST THE ORIGINAL BILL; $39 OF WHICH APPLIED TO THE INTERNAL COMBUSTION ENGINES AND $1.54 TO THE SEALING TAPE. THIS OVERPAYMENT WAS SUBSEQUENTLY RECOVERED BY DEDUCTION FROM YOUR BILL NO. 18566.

BY YOUR SUPPLEMENTAL BILL NO. 16773-SUPP. YOU RECLAIMED THE AMOUNT OF $40.54 DEDUCTED, BASED UPON THE CLASS-100 EXCEPTION RATING NAMED IN ITEM 330 OF ROCKY MOUNTAIN MOTOR TARIFF BUREAU, INC. TARIFF NO. 21-A, MF-I.C.C. NO. 95, FOR LESS-THAN-TRUCKLOAD SHIPMENTS OF INTERNAL COMBUSTION ENGINES, NOI, RADIAL TYPE OR JET PROPULSION TYPE. YOUR CLAIM WAS DISALLOWED ON THE GROUNDS THAT THE EXCEPTION RATING, ON WHICH YOU RELY, IS NOT DEPENDENT ON RELEASED VALUATION BUT IS AN UNRELEASED RATING, AND THIS UNRELEASED EXCEPTION RATING DOES NOT REMOVE FROM THE CLASSIFICATION THOSE RATINGS WHICH ARE DEPENDENT ON RELEASED VALUATION.

IN YOUR REQUEST FOR REVIEW YOU ARGUE, IN EFFECT, THAT THE EXCEPTION RATING IS THE ONLY RATING PUBLISHED TO APPLY ON THIS TYPE SHIPMENT BY VIRTUE OF THE PROVISIONS OF NOTE 2 THEREIN WHICH, IT IS ALLEGED, HAS THE EFFECT OF ELIMINATING THE CLASSIFICATION RATING APPLIED BY OUR OFFICE, AND IN THIS CONNECTION, YOU REFER TO THE DECISION IN T.I.M.E. INC. V. UNITED STATES NO. 68, AND THE DAVIDSON TRANSFER AND STORAGE CO., INC. V. UNITED STATES NO. 96, FOR THE PROPOSITION THAT THE LAWFUL PUBLISHED RATES IN THE TARIFF ARE THE ONLY APPLICABLE RATES AND, THEREFORE, THAT YOU WOULD BE IN VIOLATION TO ASSESS ANY RATE OTHER THAN THE ONE PUBLISHED IN THE EXCEPTIONS TARIFF.

IN THE T.I.M.E. AND DAVIDSON CASES, 359 U.S. 464, THE UNITED STATES SUPREME COURT HELD THAT A SHIPPER OF GOODS BY A CERTIFICATED COMMON CARRIER BY MOTOR VEHICLE COULD NOT CHALLENGE IN POST-SHIPMENT LITIGATION THE REASONABLENESS OF THE CARRIER'S CHARGES WHICH WERE MADE IN ACCORDANCE WITH THE TARIFF GOVERNING THE SHIPMENT. IN THE PRESENT INSTANCE,HOWEVER, THE QUESTION DOES NOT CONCERN THE REASONABLENESS OF THE CHARGES ASSESSED BY THE CARRIER BUT THEIR APPLICABILITY. CONSEQUENTLY, THE T.I.M.E. AND DAVIDSON DECISION IS NOT PERTINENT.

NATIONAL MOTOR FREIGHT CLASSIFICATION NO. A-4 NAMES THREE RATINGS ON INTERNAL COMBUSTION ENGINES. TWO OF THE RATINGS ARE NAMED IN ITEM NO. 61244, APPLIED IN THE DISALLOWANCE OF YOUR CLAIM, AND ARE BASED ON RELEASED VALUATIONS. THE OTHER IS PROVIDED IN ITEM NO. 61247 AND IS BASED ON UNRELEASED VALUATIONS. UNDER SIMILAR CIRCUMSTANCES THE INTERSTATE COMMERCE COMMISSION HELD THAT RELEASED AND UNRELEASED CLASSIFICATION RATINGS SHOULD BE CONSIDERED FROM A TRANSPORTATION STANDPOINT AS SEPARATE AND DISTINCT ITEMS AND, THEREFORE, THAT WHERE, AS HERE, THE CLASSIFICATION PROVIDES RATINGS ON THE BASIS OF BOTH RELEASED AND UNRELEASED VALUATIONS, AN EXCEPTION TO THE CLASSIFICATION OR COMMODITY RATE, WHICH IS NOT SUBJECT TO RELEASED VALUATIONS SUPERSEDES ONLY THE CLASSIFICATION RATING WHICH ALSO IS NOT SUBJECT TO A RELEASED VALUATION. SEE DOW CHEMICAL CO. V. CHESAPEAKE AND OHIO RY., 306 I.C.C. 403; UPJOHN CO. V. PENNSYLVANIA R.R. CO., 306 I.C.C. 325, AND HOME FOODS, INC. V. DELAWARE L. AND W.RY., 303 I.C.C. 655.

IN ADDITION, THE ASSISTANT DIRECTOR, BUREAU OF TRAFFIC, INTERSTATE COMMERCE COMMISSION, ALSO RECENTLY CONSIDERED THE SIGNIFICANCE OF SIMILAR TARIFF PROVISIONS (ITEM 61243 SMCRC TARIFF NO. 515-C, MF I.C.C. NO. 960) IN A LETTER DATED DECEMBER 16, 1959, UNDER FILE 500 536392, ADDRESSED TO THE M.R. AND R. TRUCKING COMPANY OF CRESTVIEW, FLORIDA, COPY ENCLOSED, IN WHICH IT WAS STATED IN PART:

"AS AFORE STATED, IN THE AMERICAN HOME FOODS CASE AND IN THE UPJOHN CASE IT WAS HELD THAT WHILE FROM A COMMERCIAL STANDPOINT THERE WAS NO DIFFERENCE IN THE COMMODITIES WHETHER THEIR VALUE WAS RELEASED OR NOT RELEASED, IT WAS EQUALLY APPARENT THAT THERE WAS A DISTINCT DIFFERENCE FROM A TRANSPORTATION STANDPOINT BY REASON OF THE SHIPPER'S DECLARATION AS TO VALUE. WE THEREFORE ARE STILL OF THE VIEW THAT UNRELEASED ITEM 61243 IN SMCRC 515-C DOES NOT DISPLACE THE RELEASED PROVISIONS IN THE CLASSIFICATION AND WE DO NOT SEE THAT NOTE D THEREIN MAKES ANY MATERIAL CONTRIBUTION IN THIS INSTANCE.'

NOTE 2 TO ITEM NO. 330 IN THE EXCEPTIONS TO THE CLASSIFICATION, WHICH IS SIMILAR TO NOTE D REFERRED TO IN THE ABOVE QUOTATION, PROVIDES THAT THE RELEASED VALUATION PROVISIONS SHOWN IN ITEMS NOS. 61244, 61245 AND 61246WILL NOT APPLY IN CONNECTION WITH THE EXCEPTIONS RATINGS. WHILE THE LANGUAGE USED IN SUCH NOTE IS NOT ENTIRELY CLEAR AND ITS INTENT IS NOT COMPLETELY FREE FROM DOUBT, IT APPEARS TO MAKE THE EXCEPTIONS RATING FOR APPLICATION ONLY IN CONNECTION WITH SHIPMENTS OF UNRELEASED VALUATION ARTICLES AND CONSEQUENTLY ITEM NO. 330 DID NOT REMOVE FROM THE CLASSIFICATION THE RELEASED VALUATION RATINGS ON INTERNAL COMBUSTION ENGINES. AT LEAST THE WORDING OF NOTE 2 IS SO AMBIGUOUS IN THIS REGARD THAT ANY DOUBT IN THE MATTER IS REQUIRED TO BE RESOLVED AGAINST THE CARRIER AND IN FAVOR OF THE SHIPPER. SEE UNITED STATES V. STRICKLAND TRANSPORTATION CO., 204 F.2D 325, CERTIORARI DENIED 346 U.S. 856; PETALUMA AND SANTA ROSA R. V. COMMODITY CREDIT CORP., 83 F.SUPP. 639, AFFIRMED 190 F.2D 438; LOUISVILLE AND N.R. V. ST. REGIS PAPER CO., 102 F.SUPP. 713, AFFIRMED 201 F.2D 371; TIDE WATER ASSOCIATED OIL CO. V. ALTON AND R., 289 I.C.C. 42, 47; CHARLESTON AND W.C.RY. CO. V. MERRY BROS. BRICK AND TILE CO. (GA.CT. OF APP.), 70 S.E.2D 798.

IN THIS CONNECTION IT IS PERTINENT TO NOTE THAT IN APPARENT RECOGNITION OF THE FACT THAT NOTE 2 DID NOT HAVE THE EFFECT FOR WHICH YOU CONTEND, THE NOTE WAS AMENDED EFFECTIVE APRIL 18, 1959, IN R.M.M.T.B. NO. 21-B,TO PROVIDE AS FOLLOWS:

"NOTE--- THE PROVISIONS OF THIS ITEM REMOVE ALL CLASS RATINGS, INCLUDING THE RELEASED VALUATION PROVISIONS, SHOWN IN ITEMS 61244, 61245, 61246, 61248 AND 61249 SERIES OF THE CURRENT CLASSIFICATION. NEITHER THE RATINGS NOR THE RELEASED VALUATION PROVISIONS SHOWN IN ITEMS 61244, 61245, 61246, 61247, 61248 AND 61249 SERIES OF THE CURRENT CLASSIFICATION APPLY IN CONNECTION WITH RATES IN THIS TARIFF.'

IN VIEW OF WHAT HAS BEEN SAID IT APPEARS THAT ONLY ITEM 61247 OF THE CLASSIFICATION PROVIDING UNRELEASED VALUATION RATING WAS SUPERSEDED BY ITEM 330 OF R.M.M.T.B. TARIFF NO. 21-A, AND ITEM 61244, NAMING THE RELEASED VALUATION RATINGS, REMAINED IN FULL FORCE AND EFFECT.

CONDITION NO. 5 ON THE REVERSE OF BOTH THE BILL OF LADING AND THE SHIPPING ORDER PROVIDES THAT THE SHIPMENT COVERED BY THE BILL OF LADING IS MADE AT THE RESTRICTED OR LIMITED VALUATION SPECIFIED IN THE TARIFF OR CLASSIFICATION AT OR UNDER WHICH THE LOWEST RATE IS AVAILABLE, UNLESS OTHERWISE INSTRUCTED ON THE FACE OF THE BILL OF LADING. ALSO, THE FACE OF THIS BILL OF LADING WAS ANNOTATED "RELEASED TO A VALUATION NOT EXCEEDING $2.50 PER POUND.' IT APPEARS, THEREFORE, THAT THIS SHIPMENT WAS MADE AT THE RELEASED VALUATION RATING PROVIDED IN ITEM NO. 61244 OF THE CLASSIFICATION, AND THAT THE CLASS-85 LTL RATING USED IN OUR AUDIT AND SUBSEQUENT DISALLOWANCE OF YOUR CLAIM WAS CORRECT.